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Guidelines Part 2

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Guidelines Part 2 Contents

APPLICATION

  G2.1-2 Homeowners as "employers"
  G2.2 General duty to work without undue risk
  G2.4 Prompt compliance

Guidelines Part 2 - Application

G2.1-2 Homeowners as "employers

Issued September 22, 2006

Regulatory Excerpt
Section 2.1 of the OHS Regulation ("Regulation") states:

This Occupational Health and Safety Regulation applies to all employers, workers and all other persons working in or contributing to the production of any industry within the scope of Part 3 of the Workers Compensation Act.

Purpose of guideline
The purpose of this guideline is to set out how WorkSafeBC determines the status of homeowners who hire persons to do work, with respect to assessments, coverage, and occupational health and safety obligations under the Workers Compensation Act ("Act").

General
Homeowners hire various contractors to do work in and around their homes. These work arrangements are often short term or on a casual basis. It can be unclear if the persons doing this kind of work should be considered as workers, and the homeowner as an employer under the Act. This issue often arises in the context of renovations or roofing work where homeowners engage persons to work for a temporary period of time.

When does a homeowner become an employer and the contractors their workers
To answer this question, reference must be made to the WorkSafeBC Assessment Manual that provides guidance on who is considered to be an employer and who is considered to be a worker. The policies governing who must be registered as an employer and pay assessments also determines the status of workplace parties for the purposes of Part 3 of the Act and the Regulation.

WorkSafeBC has authority to exempt certain employers and workers from the Act. One category of exemption that WorkSafeBC has made relates to work done for homeowners - Assessment Policy AP1-2-1(b)(1)(ii). The exemption provided is in limited situations, and depends on the amount of time a person performs work for a homeowner.

The policy states the exemption as follows:

(1) An individual employed by the owner or occupier in or around a private residence, other than for the purpose of the owner's or occupier's trade or business, or employed in serving the personal needs of the owner or occupier or the owner's or occupier's family is exempt where:

(i) the individual is regularly employed for a definite or indefinite period on a weekly, monthly or similar basis for an average of less than
8 working hours per week; or

15 working hours per week, and the individual is employed caring for children in the period immediately preceding and following school; or

(ii) the individual is employed to do a specific job or jobs involving a temporary period of less than 24 working hours. (emphasis added)

In determining whether a job lasts more than 24 hours, it is the total person hours for the job that is relevant. For example, if three workers work for nine hours, WorkSafeBC considers that job to be for a period of 27 hours, and therefore the exemption does not apply.

In summary, the homeowner who hires persons for a job less than 24 hours in duration in total does not need to register as an employer, and the persons doing the work are not regarded as workers under the Act. An officer may not write orders against the homeowner for violations as an employer.

For jobs exceeding this time, homeowners are considered to be employers, and must register under the Act. Persons hired by the homeowners are workers. Both the homeowners and workers must meet their respective obligations as employers and workers under Part 3 of the Act and the Regulation, and officers may write orders on the employers and/or the workers.

It should be noted that if a homeowner is not exempt from registration but has failed to register with WorkSafeBC, the homeowner is still an employer. Failure to register does not negate the homeowner's responsibilities as an employer under the Act and the Regulation.

Homeowners are not required to register with WorkSafeBC where the persons they have hired are themselves registered, either as employers or as individuals with Personal Optional Protection (POP) coverage. WorkSafeBC recommends that homeowners apply for a clearance letter to ensure the contractor they intend to hire is in good standing with the Assessment Department. More information about this is available for homeowners at: www.worksafebc.com/publications/how_to_work_with_the_wcb/Assets/
PDF/homeowner.pdf

The homeowner retains the obligations of an owner under s. 119 of the Act in all cases, even when they are also an employer.

G2.2 General duty to work without undue risk

Issued August 1, 1999

An order issued citing section 2.2 of theOHS Regulation must identify in the body of the order the condition causing undue risk.

If the requirements of a specific section of the OHS Regulation applicable to another industry or activity specific operation, or the requirements of another regulatory agency can provide guidance for elimination of the undue risk, the order may quote or refer to that specific section or requirement.

An officer will, where practicable, consult with his or her manager before an order is issued using section 2.2. Otherwise, the officer will promptly notify the manager after the order is issued.

G2.4 Prompt compliance

Issued August 1999; Revised October 27, 2004

Section 2.4 of the OHS Regulation states that "every person to whom an order or directive is issued by the Board must comply promptly or by the time set out in the order or directive."

If it is not practicable for the employer to comply without delay a Board prevention officer will use section 2.4 to set a time by which compliance will be achieved. The granting of time must be for a valid reason. Application to the Board for a variance to a regulation should not be used without prior approval from a Regional Manager as the reason for granting time to comply.

An officer granting an employer time to achieve compliance will include as part of the order or direction the date by which compliance must be achieved. The prevention officer may require the employer to submit a compliance notice to the Board under section 194 of the Act when the violations in question have been remedied. Section 194 provides:

(1) An order may include a requirement for compliance reports in accordance with this section.

(2) The employer or other person directed by an order under subsection (1) must prepare a compliance report that specifies
(a) what has been done to comply with the order, and
(b) if compliance has not been achieved at the time of the report, a plan of what will be done to comply and when compliance will be achieved.

(3) If a compliance report includes a plan under subsection (2)(b), the employer or other person must also prepare a follow-up compliance report when compliance is achieved.

(4) In the case of compliance reports prepared by an employer, the employer must
(a) post a copy of the original report and any follow-up compliance reports at the workplace in the places where the order to which it relates are posted,
(b) provide a copy of the reports to the joint committee or worker health and safety representative, as applicable,
(c) if the reports relate to a workplace where workers of the employer are represented by a union, send a copy to the union, and
(d) if required by the Board, send a copy of the reports to the Board.

There may be valid reasons for granting time for compliance in a situation where it is not possible for the prevention officer during the inspection to determine how much time is required. The prevention officer may then order the employer to submit a written compliance notice to the Board by a certain date that includes a compliance plan. This plan sets out the steps the employer will take to achieve compliance, the date at which each step will be completed and the final date for compliance.

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Disclaimer: The Worker and Employer Services Division issues Guidelines to help with the application and interpretation of sections of the Occupational Health and Safety Regulation and with divisions of the Workers Compensation Act that relate to health and safety. Guidelines are not intended to provide exclusive interpretations but to assist with compliance. The Workers' Compensation Board of B.C. ("WorkSafeBC") does not warrant the accuracy or the completeness of the online version of the Guidelines and neither WorkSafeBC nor its board of directors, employees or agents shall be liable to any persons for any loss or damage of any nature, whether arising out of negligence or otherwise, which may be occasioned as a result of the use of the online version of the Guidelines.